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State v. Brunhammer

Superior Court of Delaware

September 22, 2017

STATE OF DELAWARE, Plaintiff,
v.
PAUL BRUNHAMMER, Defendant.

          Submitted: August 16, 2017

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.

          Jan A.T. vanAmerongen, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Paul Brunhammer, Howard R. Young Correctional Center, Wilmington, Delaware, pro se.

          James O. Turner, Esquire.

          LYNNE M. PARKER, Commissioner.

         This 22nd day of September 2017, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         PROCEDURAL HISTORY

         1. On October 2010, Defendant Paul Brunhammer was indicted for two counts of Rape in the Second Degree and one count of Sexual Solicitation of a Child. At the time of his indictment, Defendant was incarcerated in the State of New Jersey, serving a seven-year sentence imposed in September 2010.[1]

         2. In August 2015, while still serving the New Jersey sentence, Defendant moved to dismiss the indictment on the grounds that the State's delay in lodging the detainer against him was a denial of his right to a speedy trial. By Order dated December 7, 2015, the Superior Court denied Defendant's motion to dismiss. The Superior Court reasoned that although five years had elapsed since Defendant's indictment, the delay was solely attributable to Defendant's incarceration in New Jersey. The Superior Court further held that although Defendant claimed to have only recently learned of Delaware's indictment, he had not articulated actual prejudice caused by the delay.[2]

         3. On December 14, 2015, Defendant filed a motion for reconsideration of his speedy trial motion. The motion for reconsideration was denied by the Superior Court by Order dated January 25, 2016.[3]

         4. Defendant appealed the Superior Court's decision to the Delaware Supreme Court. His appeal was dismissed as an impermissible interlocutory appeal in a criminal case.[4]

         5. On January 20, 2016, the end of the incarcerative portion of Defendant's New Jersey sentence, Defendant was returned to Delaware to face the charges in the 2010 indictment.[5]

         6. Upon his return, Defendant was appointed defense counsel and pleaded not guilty to the charges in the indictment.

         7. During pretrial proceedings, the Superior Court twice granted requests to continue the trial to give Defendant and his counsel more time to review discovery.[6]

         8. At Defendant's final case review on May 2, 2016, he pled guilty to Rape in the Third Degree, a lesser-included offense of Rape in the Second Degree. In exchange for Defendant's plea, the State agreed to enter a nolle prosequi on the other counts in the indictment and to recommend a sentence of no more than ten years of incarceration.

         9. If Defendant had proceeded to trial, and had been convicted of all three charges of the indictment, two counts of Rape in the Second Degree and one count of Sexual Solicitation of a Child, Defendant faced a minimum mandatory sentence of four years of incarceration and a maximum sentence of 65 years of incarceration.

         10. On July 15, 2016, the Superior Court sentenced Defendant to ten years of unsuspended Level V incarceration followed by two years of Level III probation.

         11. Defendant filed a direct appeal to the Delaware Supreme Court. On March 13, 2017, the Delaware Supreme Court affirmed the judgment of the Superior Court.[7] On direct appeal, Defendant did not challenge the validity of his guilty plea. Rather, Defendant sought to have his indictment dismissed and his sentence vacated on the grounds that the State's delay in filing the detainer led to a denial of his right to a speedy trial and other related claims.[8]

         12. On direct appeal, the Delaware Supreme Court concluded that Defendant had entered into the plea knowingly, intelligently and voluntarily.[9] The Delaware Supreme Court ruled that as a result of his guilty plea, Defendant waived his right to challenge any error occurring before the entry of the plea, even those of constitutional dimensions.[10] The Delaware Supreme Court held that Defendant waived his right to appeal his speedy trial claims when he pled guilty to the charge of rape in the third degree.[11] The Delaware Supreme Court declined to consider Defendant's ineffective assistance of counsel claim on direct appeal.[12]

         13. On August 18, 2016, and again on June 1, 2017, Defendant filed a motion for modification of sentence in the Superior Court.[13] By Order dated July 20, 2017, the Superior Court denied Defendant's motion for modification of sentence. The court stated that the sentence was imposed pursuant to a plea agreement. The court further stated that the sentence was appropriate for all the reasons stated at the time of sentencing.[14]

         FACTS

         14. By way of background, the victim was a nine-year-old girl. Her mother had been dating Defendant. The cause of the break up was that Defendant told the victim's mother that he molested a ten-year-old boy in New Jersey, who was his ex-girlfriend's son. The victim's mother contacted New Jersey authorities which resulted in Defendant's arrest and conviction in New Jersey. Defendant served a seven-year Level V sentence in New Jersey for aggravated sexual assault. Defendant was incarcerated in New Jersey from September 21, 2010 to January 20, 2016.

         15. On May 15, 2010, police officers responded to the victim's mother's residence in Newark, Delaware in reference to a sexual abuse complaint involving her nine-year-old daughter. Prior to contacting the police, the victim's mother received a telephone call from her ex-husband, who told her about the sexual abuse. Apparently, the victim was staying at her father's residence for a weekend visitation when she disclosed to her father that sometime in August 2009, she was alone with Defendant inside her mother's residence in Newark. Defendant was watching her while her mother attended a meeting.

         16. During this time, Defendant began to describe to the victim in graphic detail about sex acts between him and the victim's mother. Defendant then showed the victim a vibrator and described its use. Later that night, the victim, wearing a nightgown, was lying on the floor on her stomach watching television in the living room. Defendant snuck up behind her and placed his finger inside her buttocks. The victim questioned Defendant's actions and told him that she hated him.

         17. On May 2, 2016, Defendant pled guilty to the lesser included offense of Rape in the Third Degree.

         18. During the plea colloquy, Defendant admitted that he intentionally engaged in sexual penetration with the victim causing serious mental or emotional injury.[15]

         19. At sentencing on July 15, 2016, Defendant stated:

Your Honor, there's not a word I can say that can make what I did go away, that can make this situation better. There's nothing that I can say that would make everything better. I don't even profess to know what the victim in this case is going through, Your Honor. .. I ended up becoming the very same person that- - I became the very person that I hated, which was my father.
There's probably not a word that [the victim's mother] has said about me that's not true. I was a monster at that point... I didn't get help when I needed help until I had already hurt somebody. . . This is not something I want to happen again. It's detestable behavior. And I'm disgusted with the fact that I'm the one who perpetrated this behavior.[16]

         20. Defendant filed a motion for modification of sentence in August 18, 2016. One of the grounds Defendant asserted in support of that motion was that he had accepted responsibility. Defendant stated that he had "accepted a plea agreement instead of pursuing a trial, accepted his responsibility and demonstrated remorse."[17]

         DEFENDANT'S RULE 61 MOTION

         21. Defendant filed the subject Rule 61 motion on July 17, 2017, which he supplemented on August 16, 2017.[18] In the subject motion, Defendant has raised a number of claims which all fall into two categories. First, Defendant claims that the strength of the State's case should have been tested. Defendant claims that the State's witnesses should have been questioned as to their inconsistent statements and motives. Defendant further claims that he was deprived of the right to present witnesses in his own defense. Defendant claims that the failure to test the State's case and to present witnesses in his defense was attributed to his counsel's ineffective assistance. Second, Defendant contends that he was deprived of the right to a speedy trial and that his charges should be dismissed. Defendant also claims that his deprivation of his right to a speedy trial was attributable to his counsel's ineffective assistance.

         22. The relief that Defendant is seeking in the subject Rule 61 motion is not for the plea to be vacated and for him to proceed to trial but rather for the plea to vacated and for all the charges to be dismissed.[19]

         23. If it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the court may enter an order for its ...


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